2009 (2) TMI 111 - HC - Central Excise

Respondent took a point before us that this Court has no jurisdiction to decide the matter since u/s 35G and 35L the matter has to be decided by the Hon ble Supreme Court - if it is a question of determination of such rate of duty then this Court has no jurisdiction to entertain this appeal and the appeal has to be filed before the Hon ble Supreme Court revenue agreeing that the question of determination of the duty ultimately to be decided on the basis of the decision so to be passed by the Court and accordingly, he submitted that he will file the appeal before the Hon ble Supreme Court - on the prayer of revenue, we allow to withdraw this petition and to present the same before the appropriate forum

Summary

Issues:
Jurisdiction of High Court under section 35G and 35L to decide excise duty matter.

Analysis:
The respondent's counsel argued that the High Court lacks jurisdiction to decide the matter under section 35G and 35L, emphasizing that matters falling under these sections must be decided by the Supreme Court. Section 35G allows appeals to the High Court from orders passed by the Appellate Tribunal after a specified date, provided the case involves a substantial question of law. The Commissioner of Central Excise or the aggrieved party may file an appeal within a set timeframe and pay a prescribed fee. The High Court, upon satisfaction of a substantial question of law, formulates and decides on that question, with the provision to determine other issues not addressed by the Appellate Authority or wrongly decided by the Tribunal.

The respondent's counsel also highlighted Section 35L, which allows appeals to the Supreme Court from judgments of the High Court in certain cases, including those related to excise duty determination. The crux of the matter was whether the order in question fundamentally affected the determination of excise duty rates. The communication from the Superintendent of Central Excise directed specific actions regarding the verification of certificates for goods, emphasizing compliance with notification conditions to avoid duty payment. The appeal process involved various authorities, with the Tribunal ultimately ruling in favor of the respondent.

The petitioner's counsel argued that the appeal was based on interpreting the language in the communication and did not pertain to the rate of duty determination. However, the respondent's counsel contended that the question at hand would impact the duty determination significantly. After considering the arguments and submissions, the Court allowed the petitioner to withdraw the petition and file the appeal before the appropriate forum, indicating that the issues involved in the matter necessitated consideration by the Supreme Court. The order granted leave to take necessary steps based on the same cause of action pleaded in the petition, with parties instructed to act on a signed copy of the order. Urgent certified copies of the order were to be provided upon application, subject to compliance with formalities.